Mr Leigh Pridham Undertaking (PDF Size 33Kb)

							CONSUMER AFFAIRS VICTORIA FAIR TRADING ACT 1999 ENFORCEABLE UNDERTAKING Section 146

The commitments in this undertaking are offered to the Director of Consumer Affairs Victoria by: Mr Leigh Pridham

1.

BACKGROUND Description of the conduct that Consumer Affairs Victoria investigated 1.1 Leigh Pridham was at all relevant times an agent’s representative employed by Morrison Kleeman Estate Agents Pty Ltd, ACN 053 894 974 (“the company”). The company is an Australian proprietary company limited by shares, which was registered in Victoria on 3 October 1991. At all relevant times the company’s registered office was at Unit 5, 132 Burgundy Street, Heidelberg, Victoria, 3084. At all relevant times the company’s principal place of business was at 968 Main Road, Eltham, Victoria 3095. The company is a licensed estate agent trading as Morrison Kleeman Estate Agents Pty Ltd (Licence No: 27287, granted 28 October 1991). On 17 March 2008, Mr Pridham obtained a formal written engagement authority from Ms Gillian Keays, Director of Gillron Constructions Pty Ltd, ACN: 093 665 975 (“the vendor”), to conduct the sale of 3 Almorah Street, Doreen, Victoria, 3754 (‘the property’) to the vendor’s instructions for $420,000. In doing so, Mr Pridham committed the company to acting on the vendor’s behalf and therefore became commissioned to sell the property. The vendor was the registered proprietor of the property. The company conducted an advertising campaign in regards to the property. Between 17 March 2008 and 4 July 2008, the company conducted 15 inspections of the property with prospective purchasers. On 28 May 2008, the vendors authorised a change in the advertised price to $399,950. On 30 June 2008, Mr Pridham received a telephone call from Mr Graeme Riches regarding the property. During this conversation, Mr Riches advised Mr Pridham that Mr Riches was the stepfather of Stephanie

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Page 2 of 5 Patterson. Ms Patterson at all relevant times worked for the company as an assistant property manager. 1.8 On 3 July 2008, Mr Pridham attended at an inspection of the property with Mr Riches and Margaret Riches. Mrs Riches is Ms Patterson’s mother. On 4 July 2008 at approximately 11:00am, Mr Pridham attended at an inspection of the property with Mrs Riches and Mrs Riches’ mother. Following this inspection, Mrs Riches made a verbal offer of $370,000 for the property.

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1.10 On 4 July 2008, Mr Pridham communicated this offer to the vendors. The vendors informed Mr Pridham that they would not accept any offer less than $380,000, with a short settlement period, for the property. 1.11 On 4 July 2008, Mr Pridham spoke to Mr Riches and rejected the offer of $370,000 on behalf of the vendors. Mr Pridham told Mr Riches that the vendors would be prepared to negotiate on the advertised price of $399,950 and invited a further offer. Mr Riches made a verbal offer of $380,000 and a settlement of 120 days. 1.12 On 4 July 2008 at approximately 6:00pm, at the company’s office at 2/86 Grimshaw Street, Greensborough, Victoria 3088, Mr and Mrs Riches and the vendor executed a Contract Note agreeing the sale of the property to Mr and Mrs Riches for $380,000, subject to a 60 day settlement. The Contract Note had been prepared by Mr Pridham and it identified the company as the estate agent involved in the transaction. 1.13 On 11 July 2008, Ms Leigh Maher, Branch Manager for the company, wrote to Consumer Affairs Victoria staff advising of Mr Pridham’s failure to inform the vendor in writing, in the form approved by the Director of Consumer Affairs Victoria (“the Director”), of Mrs Riches’ relationship to an employee of the company before the Contract Note was executed. 2. EXPLANATION AS TO WHY THE DIRECTOR OF CONSUMER AFFAIRS VICTORIA CONSIDERS THE CONDUCT TO CONTRAVENE THE ESTATE AGENTS ACT 1980 (“THE ACT”) AND ESTATE AGENTS (PROFESSIONAL CONDUCT) REGULATIONS 2008 (“THE REGULATIONS”) 2.1 Sub-section 55(3) of the Act provides that “an employee of an estate agent shall not whether directly or indirectly purchase or be in any way concerned or beneficially interested in the purchase of any real estate or business which his employer is by any owner thereof commissioned to sell.”

Page 3 of 5 2.2 Regulation 19 of the Regulations provides that “an agent’s representative must at all times act fairly and honestly and to the best of his or her knowledge and ability in the performance of his or her functions as an agent’s representative”. 2.3 Regulation 21(1) of the Regulations provides that “an agent’s representative must exercise all due skill, care and diligence in performing his or her functions as agent’s representative.” 2.4 Regulation 21(2) of the Regulations provides that “an agent’s representative must not engage in conduct that is unprofessional or detrimental to the reputation or interests of the estate agency industry”. 2.5 Section 52 of the Magistrates’ Court Act 1989 provides that “a person who aids, abets, counsels or procures the commission of a summary offence may be dealt with and punished as a principal offender either together with the principal offender or before or after the principal offender or before or after the principal offender is charged with the principal offence”. 2.6 The Director considers Mr Pridham to have: (i) aided and abetted the commission of a contravention of sub-section 55(3) of the Act; and (ii) contravened Regulations 19, 21(1) and 21(2) of the Regulations. 3. ACKNOWLEDGEMENT OF THE BREACH 3.1 Mr Pridham acknowledges that the alleged offending conduct contravened the Act and/or the Regulations.

4.

A STATEMENT THAT THE CONDUCT HAS STOPPED 4.1 Mr Pridham undertakes to the Director of Consumer Affairs Victoria: (i) that the alleged offending conduct has ceased and that he will take all reasonable and necessary action to ensure that there is no repetition of this conduct; and otherwise comply with the obligations imposed by the Act and Regulations upon agent’s representatives employed by a real estate business.

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UNDERTAKING

Page 4 of 5 5.1 Mr Pridham undertakes to the Director of Consumer Affairs Victoria, pursuant to section 146 of the Fair Trading Act 1999 to take all reasonable and necessary steps to ensure that: 5.1.1 He will attend, at his own expense, an accredited training course dealing in Ethics in Real Estate; 5.1.2 He will provide the Director of Consumer Affairs Victoria, within 3 months from the date this undertaking is executed, evidence that such a course has been successfully completed; 5.1.3 He will not engage in conduct that can be characterised as being contrary to good practice of agents’ representatives; 5.1.4 He will not engage in conduct that can be characterised as being detrimental to the reputation or interests of the estate agency industry; and 5.1.5 He will not aid and abet the commission of a contravention of any statute, rule or regulation in force in Victoria to the extent that it is relevant to the conduct of the estate agency industry.

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COMMENCEMENT OF UNDERTAKING 6.1 This undertaking comes into effect when: (i) (ii) it is agreed and signed by Mr Pridham; and the Director of Consumer Affairs Victoria accepts and signs the undertaking.

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This undertaking ceases to have effect on the third anniversary of its commencement.

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CONSENT 7.1 Mr Pridham hereby consents to the Director of Consumer Affairs Victoria, applying under section 146(2A) of the Fair Trading Act 1999, at any time during this undertaking is in force, to the Magistrates’ Court of Victoria for an order directing any or all persons giving this undertaking to comply with its terms.

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ACKNOWLEDGEMENTS

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8.1

Mr Pridham acknowledges that: 8.1.1 the Director of Consumer Affairs Victoria will register this undertaking in the register of undertakings and make this undertaking available for public inspection pursuant to section 148 of the Act; the Director of Consumer Affairs Victoria and/or Minister for Consumer Affairs may from time to time publicly refer to this undertaking; and this undertaking in no way derogates from the rights and remedies available to any other person arising from the alleged conduct.

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EXECUTION Executed By:

………………………..………………………………………………………… Mr Leigh Pridham Dated the……………………….day of………………………….2008 Accepted By: THE DIRECTOR OF CONSUMER AFFAIRS VICTORIA OR THE AUTHORISED DELEGATE OF THE DIRECTOR PURSUANT TO SECTION 146 OF THE FAIR TRADING ACT 1999

………………………………………………………… Director Dated the……………………….day of………………………….2008